Yerby v. State

THURSTON YERBY v. STATE OF MARYLAND

No. 2844

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

May 18, 2017

UNREPORTED

Eyler, Deborah S., Wright, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.

Opinion by Eyler, Deborah S., J.

* This is an unreported opinion and therefore may not be cited either as precedent or as persuasive authority in any paper, brief, motion, or other document filed in this Court or any other Maryland court. Md. Rule 1-104.

A jury in the Circuit Court for Prince George's County convicted Thurston Yerby, the appellant, of two counts of second-degree murder for the deaths of Tina Towler and James Ferguson. The court sentenced him to two 30-year prison sentences, to be served consecutively.

On appeal, Yerby raises two questions:

I. Did the trial court err in allowing the prosecutor to elicit evidence of [his] invocation of [his right to] counsel before the jury?

II. Did the trial court err in allowing the prosecutor to mischaracterize the DNA evidence at closing argument?

Recognizing that he failed to preserve these issues, Yerby urges us to review them for plain error. We decline to do so and shall affirm the judgments.

FACTS AND PROCEEDINGS

The evidence adduced at trial showed the following.

The bodies of Ms. Towler and Mr. Ferguson were found in their apartment on Muirkirk Road, in Laurel, on the morning of May 2, 2013. Olachi Ekeocha, a nurse for Ms. Towler's severely disabled daughter, who lived with her mother and Mr. Ferguson, arrived at the apartment at 8:00 a.m. that day. She found the bodies in the bedroom Ms. Towler and Mr. Ferguson shared with Ms. Towler's daughter, who was unharmed.¹

Ms. Ekeocha immediately called the police, who responded. Ms. Towler and Mr. Ferguson were pronounced dead at the scene. Detective Joseph Bellino led the investigation into their deaths.²

Corporal Patrick Whittington processed the apartment and collected evidence. He found the bedroom to be "disheveled," like there "had been a struggle." The evidence recovered from the apartment included a blood-stained towel from the bathroom, a red folding knife found in the bathroom sink—which was next to a bar of soap and possible blood stains—and pots, pans, and a broken "Eveready" flashlight found on the bed. Corporal Whittington also collected several empty beer cans from the trash and a glass vial—later determined to have contained PCP—from the bedroom. He observed that the bedroom door appeared to have been kicked in, and the handle to that door was on the floor behind the door "in pieces."

Carol Allan, M.D., an expert in forensic pathology, performed the autopsies. She testified that both deaths were homicides. Ms. Towler's body displayed signs of strangulation—asphyxia—as well as numerous blunt force and sharp force injuries. Ms. Towler had bruises on her neck; signs of blunt force trauma to her forehead, ears, nose, torso, and arms; and six stab wounds, which damaged her lungs, spinal column, and right kidney. Ms. Towler also had a patterned injury that may have been caused by the broken flashlight because the pattern showed the letters "EVER" on her body. Dr. Allan reportedMs. Towler's cause of death as "[m]ultiple injuries." Dr. Allan testified that Mr. Ferguson had suffered bruises to his head and chest, internal bleeding around the brain, eight stab wounds, and eight cutting wounds.³ His cause of death was "[b]lunt and sharp-force injuries." Dr. Allan testified that the knife the police recovered from the sink was consistent with Ms. Towler's and Mr. Ferguson's wounds. She also noted that both victims had alcohol, cocaine, and PCP in their systems at the time of their deaths.

Lilycent Igbani, another nurse for Ms. Towler's daughter, testified that the day before the bodies were found, she was scheduled to work and arrived early at Ms. Towler's request. Ms. Towler was not at the apartment, however, and another nurse let Ms. Igbani into the apartment around 6:00 p.m. Then, Paul Young, Mr. Ferguson's brother, dropped by for a short time.⁴ Around 8:00 p.m., Ms. Towler and Mr. Ferguson arrived home. They were accompanied by Mr. Ferguson's sister, Pamilla Colbert, and her fiancé Kevin Campbell. Ms. Colbert and Mr. Campbell left after using the bathroom. When Ms. Igbani left at 9:20 or 9:30 p.m., only Ms. Towler, Mr. Ferguson, and the daughter were in the apartment.

Meanwhile, a short distance away, Yerby and a man named Norman Gary were drinking at a house in which Mr. Gary, his wife, his mother—Mary Mitchell—and herboyfriend, Ronnie Redman, lived. According to Mr. Gary, James Towler, Ms. Towler's ex-husband, used to be roommates with Mr. Redman. Also, Mr. Ferguson had dated Ms. Mitchell. When Mr. Redman moved out of Mr. Towler's house, Yerby had moved in with Mr. Towler.⁵ Sometime that evening (May 1, 2013), Ms. Mitchell and Mr. Redman joined Mr. Gary and Yerby. Later, an argument broke out after Yerby tried to grope Ms. Mitchell and/or grab her groin. Mr. Redman and Ms. Mitchell forced Yerby to leave. Mr. Gary walked out with him and they spoke outside. Yerby told Mr. Gary, "Man, I need to find me a woman to fuck with."⁶ Around 9:00 or 10:00 p.m., Yerby left in a white Ford Expedition.

Later that night, around 10:50 p.m., Natasha Mills, a neighbor of Ms. Towler and Mr. Ferguson's, saw a white SUV idling outside their apartment. She could see a person inside the SUV smoking a cigarette, but could not identify anyone.

Within a week of the murders, Detective Bellino interviewed Mr. Towler and Yerby.⁷ At trial, Mr. Towler testified that Yerby (who was his roommate when the murders happened) was not home when he went to bed around 9:00 p.m. on May 1, 2013. When he woke up at around 6:00 a.m., Yerby was there. In the interview with Detective Bellino, Yerby stated that he routinely drove his girlfriend's 2001 white Ford Expedition. Heacknowledged that on the night of May 1, 2013, he drank and used drugs with Mr. Redman and Ms. Mitchell. He said that he left Mr. Gary's house at10:15 p.m. and went home. He denied ever stepping foot in Ms. Towler and Mr. Ferguson's apartment. Detective Bellino testified that during the interview, Yerby refused to provide a DNA sample and took an empty water bottle and cigarette butt with him when the interview was over.

Robin Wilford, Yerby's girlfriend at the time of the crimes, testified that she was at Yerby's apartment on the night of May 1, 2013, and that he arrived home between 10:00 p.m. and 11:00 p.m. On cross-examination, she admitted that she was asleep when Yerby got home.

Mertina Davis, a fingerprint analyst with the Prince George's County Police Department, testified as an expert in fingerprint identification. She opined that fingerprints recovered from the crime scene included the victims' prints and Yerby's prints. Specifically, Yerby's fingerprints were recovered from one of the beer cans in the trash.

Kristen Lease was called by the State as an expert in forensic serology and DNA analysis. She tested the recovered evidence from the crime scene and found Yerby's DNA on recovered beer cans.⁸ She conducted DNA tests on several stains on the towel recovered from the bathroom. The towel had DNA from the victims, Mr. Young (Mr. Ferguson'sbrother), Yerby, and two unknown minor contributors. One stain on the towel revealed Yerby's DNA profile only.⁹ Ms. Lease further testified that she performed DNA testing on what was suspected to be a blood stain in the sink. That stain showed the presence of the victims' DNA and Yerby's DNA at ten of fifteen loci.¹⁰ She also found the victims' DNA on the knife; and she found a DNA profile on the knife handle consistent with Yerby's at fourteen of fifteen tested loci. On cross-examination, Ms. Lease testified that the recovered broken flashlight and some of the pots and pans had blood on them.

STANDARD OF REVIEW

Yerby concedes that he failed to object to either issue he raises on appeal. He asks us to review for the issues for plain error.

"[P]lain error review is a 'rare, rare phenomenon,' undertaken only when the un-objected-to error is extraordinary." Perry v. State, 229 Md. App. 687, 710 (2016) (quoting Pickett v. State, 222 Md. App. 322, 342 (2015)). There are four prongs to plain error review:

"First, there must be an error or defect[—]some sort of deviation from a legal rule[—]that has not been intentionally relinquished or abandoned . . . by the [defendant]. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the [defendant]'s substantial rights, which . . . means [that the defendant] must demonstrate that [the error] affected the outcome of the [trial] court proceedings. Fourth and finally, if the above three prongs are satisfied, the [appellate court] has thediscretion to remedy the error[—]discretion [that] ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Meeting all four prongs is difficult, as it should be."

Givens v. State, 449 Md. 433, 469 (2016) (quoting State v. Rich, 415 Md. 567, 578 (2010)). See also White v. State, 223 Md. App. 353, 403 n.38 (2015) (plain error review is appropriate when the error is "'compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial,'" and "'review under the plain error doctrine 1) always has been, 2) still is, and 3) will continue to be a rare, rare phenomenon'" (internal citations and quotations omitted)). Moreover, plain error review is suitable only in cases of "'blockbuster errors.'" Olson v. State, 208 Md. App. 309, 363 (2012) (quoting Martin v. State, 165 Md. App. 189, 196 (2005)). A defendant "is entitled to a fair trial, but not necessarily a perfect one." Gutierrez v. State, 423 Md. 476, 499 (2011) (citing Hook v. State, 315 Md. 25, 36 (1989)).

DISCUSSION

I. Right to Counsel Testimony

The following took place on direct examination of Detective Bellino:

[THE STATE]: During the course of

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